dismissed EB-1A Case: Music

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l U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
MAR 2 6 2013 
INRE: 
PETITION: 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
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documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might hav~ concdning your case must be made to that office. 
If you believe the AAO inappropriately applied the l~w in rLching its decision, or you have additional 
· information that you wish to have considered, you may file al motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of$630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion· . I 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. . . 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
wmv.uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service C~ter, on November 21, 2012. The matter is I now before the Administrative Appeals 
Office (AAO) on appeal. The appeal will be summarily dismissed. 
The petitioner seeks classification as an emp1oymentbased immigrant pursuant to section 
203(b)(l)(A) of the Immigiation and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an 
alien of extraordinary ability as a double bass player. Conkress set a very high benchmark for aliens 
of extraordinary ability by requiring through the statute that the petitioner demonstrate "sustained 
national or international acclaim" and preserit "extbsive documentation" of his or her 
achievements. See section 203(b)(1)(A)(i) of the Abt and 8 C.F.R. § 204.5(h)(3). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) statbs that an alien can establish sustained 
national or international acclaiin through evidence of a orle-time achievement, specifically a major, 
internationally recognized award. Absent the receipt of ~ch an award, the regulation outlines ten I . 
categories of specific evidence. 8 C.P.R. §§ 204.5(h)(3)(i) through (x). The petitioner must submit 
qualifying evidence under at least three of the ten regulatbry categories of evidence to establish the 
ba8ic eligibility requirements. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition; the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidenti~ criterion. 1 With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and ·(vi), the court conclutled that while USCIS may have raised 
legitimate concerns about the significance of the eviden~e submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." ld. at 1121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that ''the 
proper procedure is to count the types of evidence pro~ided (which the AAO _did)," and if the 
petitioner failed to submit sufficient evidence, ''the properlconclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Jd. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). Thus, Kazarian ~ets forth a two~part approach where the 
evidence is first counted and then considered in the context of a final merits determination. 
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In the director's decision, the director det~ed that the petitioner met three of the regulatory 
categories of evidence. However, the director conducted ~ final merits determination and found that 
the petitioner failed to demonstrate a (I) "levelof experti1e indicating that the individual is one of 
that small percentage who have risen to the very top! of the[ir] ·field of endeavor," 8 C.F.R. 
§ 204.5(h)(2); and (2) ''that the alien has sustained national or international acclaim and that his or 
her achievements have been recognized in the field of expbise." See section 203(b)(1)(A)(i) of the 
I 
Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
. . 
1 Sp~cifically, the court· stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements . I 
beyond.those set forth in the regulations at 8 C.F.R § 204.5(h)(3)(iv~ and 8 C.F.R § 204.5(h)(3)(vi). 
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On Form I-290B, Notice of Appeal or Motion, counsel indicated in Part 2 ·that he was filing an 
ai'Peal and ·his ''brief and/or additional evidence will bei submitted _·to the AAO within 30 days." 
Counsel dated the appeal on December 14, 2012. As oftfuis date, approximately three months later, 
the AAO has received nothing further .. Accordingly, thcl record is oonsidered complete as it now 
stands. 
·The sole basis for the appeal eonsists of counsel's statement in part-3 of Form I-290B: 
. [The petitioner] met all the requirements fJ classification . as an alien of 
extraordinary ability pursuant 8 C.F.R. 204.5(h). Despite meeting the requirements 
·the Service denied the application.· 
Rather than challenging any of the director's specific firidings, counsel alleges that the petitioner 
met all ofthe requirements. The regulation at 8 C.F.R. §
1
103.3(a)(l)(v) providesthat "[a]n officer 
to whom an appeal is taken shall summarily dismiss any I appeal when the party concerned fails to 
identify specifically any erroneous conclusion of law or statement of fact for the appeal." In this 
case, counsel makes only a general assertion without offetmg any substantive argument pointing to 
specific facts or analyses in contention. 
As counsel has failed to provide any specific statement or argument regarding the basis of the 
awea~ the appeal must be summarily dismissed. 
ORDER: The appeal is dismissed. 
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